PLANNED PARENTHOOD SOUTH ATLANTIC; JULIE EDWARDS, on her behalf and on behalf of all others similarly situated, Plaintiffs - Appellees,
JOSHUA BAKER, in his official capacity as Director, South Carolina Department of Health and Human Services, Defendant-Appellant. ACCESS REPRODUCTIVE CARE-SOUTHEAST; AMERICAN ACADEMY OF PEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS; AMERICAN MEDICAL ASSOCIATION; CENTER FOR REPRODUCTIVE RIGHTS; IPAS; IN OUR OWN VOICE: NATIONAL BLACK WOMEN'S REPRODUCTIVE JUSTICE AGENDA; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE UNITED STATES; SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR MATERNAL FETAL MEDICINE; WOMEN'S RIGHTS AND EMPOWERMENT NETWORK, Amici Supporting Appellee.
Argued: September 20, 2019
from the United States District Court for the District of
South Carolina, at Columbia. Mary G. Lewis, District Judge.
McPherson Jolley, JOLLEY LAW GROUP, LLC, Columbia, South
Carolina, for Appellant.
Joanna Clapman, PLANNED PARENTHOOD FEDERATION OF AMERICA,
Washington, D.C., for Appellees.
B. Kirk, JOLLEY LAW GROUP, LLC, Columbia, South Carolina, for
Malissa Burnette, Kathleen McDaniel, BURNETTE, SHUTT &
MCDANIEL, PA, Columbia, South Carolina, for Appellees. Jane
Liu, Mariah Lindsay, NATIONAL ASIAN PACIFIC AMERICAN
WOMEN'S FORUM, Washington, D.C.; Julie Rikelman, Pilar
Herrero, Amy Myrick, Carolina Van Der Mensbrugghe, CENTER FOR
REPRODUCTIVE RIGHTS, New York, New York, for Amici Access
Reproductive Care-Southeast, Center for Reproductive Rights,
In Our Own Voice: National Black Women's Reproductive
Justice Agenda, National Asian Pacific American Women's
Forum, National Latina Institute for Reproductive Health, and
Women's Rights and Empowerment Network. Janice M. Mac
Avoy, Andrew B. Cashmore, Alexandra Verdi, FRIED, FRANK,
HARRIS, SHRIVER & JACOBSON LLP, New York, New York, for
Amici American College of Obstetricians and Gynecologists,
American Medical Association, Society for Maternal Fetal
Medicine, American Academy of Pediatrics, American College of
Physicians, and Society for Adolescent Health and Medicine.
Martha Jane Perkins, Sarah Jane Somers, NATIONAL HEALTH LAW
PROGRAM, Carrboro, North Carolina, for Amici National Health
Law Program, IPAS, and Sexuality Information and Education
Council of the United States.
WILKINSON, WYNN, and RICHARDSON, Circuit Judges.
WILKINSON, CIRCUIT JUDGE.
case raises a question of statutory construction. We ask
whether, and on what basis, the Medicaid Act's
free-choice-of-provider provision affords a private right of
action to challenge a state's exclusion of a healthcare
provider from its Medicaid roster. The district court here
issued a preliminary injunction in favor of the individual
plaintiff, a Medicaid recipient, in her suit challenging
South Carolina's decision to terminate Planned Parenthood
South Atlantic's (PPSAT) provider agreement because it
offers abortion services. The plaintiff was likely to succeed
on the merits of this claim, the district court held, for two
interrelated reasons: first, the Medicaid Act's
free-choice-of-provider provision, 42 U.S.C. §
1396a(a)(23)(A), confers on "any individual" a
private right to sue that may be enforced under 42 U.S.C.
§ 1983; and second, South Carolina denied plaintiff the
right to select the willing, qualified family-planning
provider of her choice.
affirm. Based on the Supreme Court's precedents,
Congress's intent to create an individual right
enforceable under § 1983 in the free-choice-of-provider
provision is unambiguous. In addition, a plain-language
reading of the provision's mandate-that states
"must" furnish Medicaid recipients the right to
choose among providers "qualified to perform the service
or services required"-bars states from excluding
providers for reasons unrelated to professional competency.
See 42 U.S.C. § 1396a(a)(23)(A), (p)(1).
Finding the remaining preliminary injunction factors
satisfied, we shall uphold the trial court's judgment.
is the nation's public health insurance program for those
of limited means. The original beneficiaries of this program
were low-income children and their parents, the indigent
elderly, the blind, and the disabled. Schweiker v. Gray
Panthers, 453 U.S. 34, 37 (1981). Since 1965, Congress
has periodically expanded the program, adding, for instance,
pregnant women with family incomes up to 133% of the federal
poverty level as a distinct beneficiary class. See
42 U.S.C. § 1396a(a)(10)(A)(i), (l); Medicare
Catastrophic Coverage Act of 1988, Pub. L. No. 100-360,
§ 302, 102 Stat. 683, 750; Omnibus Budget Reconciliation
Act of 1989, Pub. L. No. 101-239, § 6401, 103 Stat.
federal-state effort ensures that the healthcare needs of
these beneficiaries are met. In broad strokes, the Medicaid
Act "offers the States a bargain: Congress provides
federal funds in exchange for the States' agreement to
spend them in accordance with congressionally imposed
conditions." Armstrong v. Exceptional Child
Ctr., 135 S.Ct. 1378, 1382 (2015). The Act, to that end,
charges the federal government with crafting baseline
eligibility requirements for recipients and providers,
determining covered medical services, and establishing
reimbursement standards to the states. See 42 U.S.C.
§ 1396 et seq.; NFIB v. Sebelius, 567
U.S. 519, 541-42 (2012). Cooperating states then implement
the program, agreeing to abide by federal conditions in
return for federal matching funds that are used for expenses
such as provider reimbursements. See Armstrong, 135
S.Ct. at 1382. Such funds are substantial; federal coffers
finance anywhere from fifty to eighty- three percent of state
expenses, 42 U.S.C. § 1396d(b), an aggregate figure that
accounts for over ten percent of most states' total
revenue, NFIB, 567 U.S. at 542.
designed the Medicaid program to ensure that states dispense
federal funds in compliance with federal rules. At the
outset, states must propose and submit Medicaid plans for the
approval of the Centers for Medicare and Medicaid Services.
Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565
U.S. 606, 610 (2012). State departures from federal
requirements provide grounds for the Secretary of Health and
Human Services (HHS) to withhold Medicaid funding, either in
whole or in part. See 42 U.S.C. § 1396c; 42
C.F.R. § 430.12(c). If federal requirements are met,
however, states have "substantial discretion to choose
the proper mix of amount, scope, and duration limitations on
coverage, as long as care and services are provided in
'the best interests of the recipients.'"
Alexander v. Choate, 469 U.S. 287, 303 (1985)
(quoting 42 U.S.C. § 1396a(a)(19)).
issue here is the Medicaid Act's free-choice-of-provider
provision, 42 U.S.C. § 1396a(a)(23), which states:
A State plan for medical assistance must- provide that any
individual eligible for medical assistance . . . may obtain
such assistance from any institution, agency, community
pharmacy, or person, qualified to perform the service or
services required . . . who undertakes to provide him such
services . . . .
42 U.S.C. § 1396a(a)(23)(A). That provision guarantees
patients access to qualified and willing providers. A state
plan must generally allow Medicaid recipients to obtain care
from any provider who is "qualified to perform the
service or services required" and "who undertakes
to provide . . . such services."
mechanics, the free-choice-of-provider provision comports
with the Medicaid Act's dual emphasis on federal
standard-setting and state flexibility. While Medicaid
beneficiaries may generally seek medical services from
willing providers of their choice, states retain
discretionary authority to determine whether entities are
medically "qualified to perform the service or services
required." States may also exclude providers from their
plans "for any reason for which the [federal] Secretary
of [Health and Human Services] could exclude the individual
or entity," 42 U.S.C. § 1396a(p)(1), or on certain
state-law grounds, see 42 C.F.R. §
dispute arose following South Carolina's termination of
two Planned Parenthood centers as Medicaid providers. PPSAT
operates two healthcare centers in South Carolina, one in
Charleston and the other in Columbia. These centers provide a
range of family planning and preventative care services,
including physical exams, cancer screenings, contraceptive
counseling, and pregnancy testing. For four decades, PPSAT
has been a South Carolina Medicaid provider that receives
reimbursements for care provided to Medicaid beneficiaries.
In recent years, PPSAT's South Carolina centers have
treated hundreds of patients insured through Medicaid
those patients is the individual plaintiff in this case, who
suffers from diabetes and its resulting complications. J.A.
75-78. Because doctors have advised that these complications
would make it quite dangerous for her to carry a pregnancy to
term, the plaintiff considers it imperative that she have
access to safe, effective birth control. After the plaintiff
had difficulty finding a doctor who accepted Medicaid
patients and was willing to provide her preferred form of
birth control, she turned to PPSAT's Columbia center. At
her PPSAT appointment, the doctors inserted an intrauterine
device to prevent pregnancy and informed her that her blood
pressure was elevated. As a result, she sought follow-up care
from her endocrinologist to control her blood pressure.
Because the plaintiff was impressed with the care she
received at PPSAT, she planned to switch her gynecological
and reproductive health care there.
2018, South Carolina's Department of Health and Human
Services (SCDHHS) terminated PPSAT's Medicaid provider
agreement. SCDHHS did not contend that PPSAT was providing
subpar service to its Medicaid patients, or to any other
patients. Instead, PPSAT was terminated solely because it
performed abortions outside of the Medicaid
to SCDHHS, PPSAT's termination was part of a plan by
Governor Henry McMaster designed to prevent the state from
indirectly subsidizing abortion services. In 1995, the South
Carolina legislature passed a law preventing state funds
appropriated for family planning services from being used to
fund abortions. S.C. Code Ann. § 43-5-1185 (1995). After
taking office in 2017, Governor McMaster issued two executive
orders designed to further this objective. The first,
Executive Order 2017-15, directed state agencies "to
take any and all necessary actions . . . to the extent
permitted by law, to cease providing State or local funds . .
. to any physician or professional medical practice
affiliated with an abortion clinic . . . ." J.A. 56-58.
The second, Executive Order 2018-21, directed SCDHHS to
"deem abortion clinics . . . and any affiliated
physicians or professional medical practices . . . that are
enrolled in the Medicaid program as unqualified to provide
family planning services and, therefore, to immediately
terminate them . . . ." J.A. 70-71. SCDHHS responded
quickly. On the day the second order was issued, SCDHHS
Officer of Health Programs Amanda Williams notified PPSAT by
letter that "[t]he Governor's actions result in
Planned Parenthood no longer being qualified to provide
services to Medicaid beneficiaries" and that PPSAT's
enrollment agreement with South Carolina was terminated
effective immediately. J.A. 73. As a result, PPSAT's two
South Carolina centers began to turn away Medicaid patients.
27, 2018, PPSAT and the individual plaintiff (collectively,
"plaintiffs") filed suit in federal district court
in South Carolina against Joshua Baker, in his official
capacity as Director of SCDHHS. The individual plaintiff
brought suit on her own behalf and that of a purported class
of South Carolina Medicaid beneficiaries who received, or
would like to receive, healthcare services at PPSAT.
Plaintiffs brought this action under 42 U.S.C. § 1983,
seeking injunctive and declaratory relief on the grounds that
SCDHHS violated their rights under the Medicaid Act and the
Fourteenth Amendment. On July 30, plaintiffs filed for
preliminary injunctive relief solely on the basis of their
Medicaid Act claims. The district court held hearings on
plaintiffs' motion on August 23. In their complaint and
at the hearing, plaintiffs argued that the Medicaid Act's
free-choice-of-provider provision confers on recipients a
private right, enforceable under 42 U.S.C. § 1983, to
use the qualified and willing provider of their choice, and
that South Carolina violated this right when it terminated
PPSAT for reasons unrelated to its professional competence to
provide medical services.
district court agreed with the plaintiffs and granted a
preliminary injunction on August 28, 2018. Because the
district court held that injunctive relief was appropriate
based on the individual plaintiff's Medicaid Act claim
alone, it did not analyze PPSAT's Medicaid Act claim.
First, it held that the individual plaintiff's Medicaid
Act claim was likely to succeed on the merits. It agreed that
the free-choice-of-provider provision confers a private
right, enforceable under 42 U.S.C. § 1983, on
Medicaid-eligible patients, guaranteeing their right to
choose any willing provider "qualified to perform"
the relevant service. Critically, the court held that
"qualified" should be given its ordinary meaning-
professionally competent. Relatedly, the district court
rejected South Carolina's contention that §
1396a(p)(1) of the Medicaid Act gives a state plenary
authority to exclude providers from its program "for any
reason whatsoever as long as the reason is bolstered by State
law." Planned Parenthood S. Atl. v. Baker, 326
F.Supp.3d 39, 47-48 (D.S.C. 2018). To the contrary, it held
that the state's authority to exclude providers is
limited by the free-choice-of-provider provision.
the district court found that the other conditions necessary
for a preliminary injunction-irreparable harm, balancing of
the equities, and the public interest-were satisfied. In
weighing the equities, the district court rejected South
Carolina's argument that the state would be forced to
subsidize abortions if it were enjoined from terminating
PPSAT's provider agreement. Baker, 326 F.Supp.3d
at 49-50. First, because South Carolina's Medicaid
program does not cover abortions except in the narrow
circumstances required by federal law, there was no direct
subsidization of non-covered abortions. See id. at
47. Second, because "PPSAT is reimbursed for Medicaid
services on a fee-for-service basis," id. at
49, at rates that do not cover its costs, PPSAT's
participation in Medicaid did not generate excess funds that
could be used to indirectly subsidize abortions. See
id. at 47, 49-50. Accordingly, the district court
granted a preliminary injunction preventing South Carolina
from terminating PPSAT's Medicaid enrollment agreement.
Carolina timely appealed.
free-choice-of-provider provision lies at the heart of this
appeal. As noted above, the provision states that:
A State plan for medical assistance must- provide
that any individual eligible for medical assistance
(including drugs) may obtain such assistance from
any institution, agency, community pharmacy, or
person, qualified to perform the service or services
required (including an organization which provides such
services, or arranges for their availability, on a prepayment
basis), who undertakes to provide him such services . . . .
42 U.S.C. § 1396a(a)(23)(A) (emphases added).
difficult to imagine a clearer or more affirmative directive.
The provision applies to "any individual"
eligible for Medicaid; grants these individuals the right to
obtain medical treatment from "any
institution" willing and "qualified to perform the
service or services required"; and provides that state
plans "must" comply.
could have made an exception for providers offering abortion
services. But it did not do so. Because we "presume that
a legislature says in a statute what it means and means in a
statute what it says there," Connecticut Nat'l
Bank v. Germain, 503 U.S. 249, 253-54 (1992), this court
cannot write into a statute an exception that Congress did
not create. Accordingly, we take the free-choice-of-provider
provision to mean that a Medicaid recipient has the right to
challenge a state's exclusion of a provider from its